N.S. VENKATESAN Vs. SIVAKAMI

JUDGEMENT

(1.) THE respondent in M.C.No.154 of 1990 on the file of Additional Family Court, Madras has filed this petition under S. 482 Criminal Procedure Code praying to call for the records in the aforesaid M.C.No.154/90 and quash the same.

(2.) THE respondent herein has filed the petition under S. 125 Criminal Procedure Code against the petitioner herein praying for maintenance. The allegations in it are briefly as follows:

(3.) MR . K. Venugopal, the learned counsel appearing for the petitioner would contend that the petitioner has filed petition in H.M.O.P.No.409/89 for restitution of conjugal rights and an ex parte order was passed in his favour on 26.12.89, and it is in force. While so, the respondent herein cannot be asked to pay maintenance in view of S. 125(4) of Criminal Procedure Code whereunder the wife shall not be entitled to maintenance if without any sufficient reasons she refused to live with her husband. He would add that as a consequence of an order of restitution of conjugal rights in his favour, the respondent must come to the matrimonial home or otherwise it would amount to refusal to live with her husband without any sufficient reason, disentitling her to make a claim for maintenance. Per contra, Mrs. Bhagirathi Rangarajan, the learned counsel for the respondent, would contend that an order of restitution of conjugal rights and that too an ex parte order in favour of the husband by itself is not a ground for refusal of maintenance by the husband. She would further contend that S. 125 Criminal Procedure Code excludes to some extent the application of any other Act and the exclusion extends to the quantum of maintenance and circumstances under which it could be granted. Thus the question that arises for consideration in this petition is whether an ex parte order obtained by the husband for restitution of conjugal rights is a complete answer to the claim of a wife for maintenance under S. 125, Criminal Procedure Code.